§ 289-B — Penalties and interest

New York § 289-B

• Jurisdiction: New York
• Law TAX: Tax
• Art. 12-A: Tax On Gasoline and Similar Motor Fuel

Text

§ 289-b. Penalties and interest. 1. (a) A distributor or other person\nwho or which fails to file a return or to pay any tax within the time\nrequired by or pursuant to this article (determined with regard to any\nextension of time for filing or paying) shall be subject to a penalty of\nten per centum of the amount of tax determined to be due as provided in\nthis article plus one per centum of such amount for each month or\nfraction thereof during which such failure continues after the\nexpiration of the first month after such return was required to be filed\nor such tax became due, not exceeding thirty per centum in the\naggregate. Provided, however, in the case of a failure to file such\nreturn within sixty days of the date prescribed for filing of such\nreturn by or pursuant to this article (determined with regard to any\nextension of time for filing), the penalty imposed by this paragraph\nshall not be less than the lesser of one hundred dollars or one hundred\nper centum of the amount required to be shown as tax on such return. For\nthe purpose of the preceding sentence, the amount of tax required to be\nshown on the return shall be reduced by the amount of any part of the\ntax which is paid on or before the date prescribed for payment of the\ntax and by the amount of any credit against the tax which may be claimed\nupon the return.\n (b) If any amount of tax is not paid on or before the last date\nprescribed in this article for payment, interest on such amount at the\nunderpayment rate set by the commissioner of taxation and finance\npursuant to subdivision twenty-sixth of section one hundred seventy-one\nof this chapter shall be paid for the period from such last date to the\ndate paid, whether or not any extension of time for payment was granted.\nInterest under this paragraph shall not be paid if the amount thereof is\nless than one dollar.\n (c) If the tax commission determines that such failure or delay was\ndue to reasonable cause and not due to willful neglect, it shall remit\nall or part of such penalty. The tax commission shall promulgate rules\nand regulations as to what constitutes reasonable cause.\n (d) If the failure to pay any tax within the time required by or\npursuant to this article is due to fraud, in lieu of the penalties and\ninterest provided for in paragraphs (a) and (b) of this subdivision,\nthere shall be added to the tax (i) a penalty of two times the amount of\ntax due, plus (ii) interest on such unpaid tax at the underpayment rate\nset by the commissioner of taxation and finance pursuant to subdivision\ntwenty-sixth of section one hundred seventy-one of this chapter for the\nperiod beginning on the last day prescribed by this article for the\npayment of such tax (determined without regard to any extension of time\nfor paying) and ending on the day on which such tax is paid.\n (e) Any owner of a filling station who shall willfully and knowingly\nhave in his custody, possession or under his control any motor fuel or\nDiesel motor fuel on which (i) the taxes imposed by or pursuant to the\nauthority of this article have not been assumed or paid by a distributor\nregistered as such under this article or (ii) the taxes imposed by or\npursuant to the authority of this article, which taxes were required to\nhave been passed through to him and included in the cost to him of such\nfuel, have not been included in the cost to him of such fuel shall be\nliable for a penalty equal to twice the amount of tax so not assumed or\npaid, or included. Such penalty shall be determined, assessed, collected\nand paid in the same manner as taxes imposed by this article and all the\nprovisions of this article relating to determination of tax, proceedings\nto recover tax, refunds (but only of monies paid in error), mailing\nrules and disposition of revenue shall be deemed also to refer to the\npenalty imposed by this paragraph and, for this purpose, the term "owner\nof a filling station" shall be substituted for the term "distributor"\nwherever appearing in such provisions. Such penalty may be determined at\nany time within three years after such motor fuel or Diesel motor fuel\nshall have come into the custody, possession or control of such owner of\na filling station. For purposes of this paragraph, such owner shall\nwillfully and knowingly have in his custody, possession or under his\ncontrol any motor fuel or Diesel motor fuel (1) on which such taxes have\nnot been assumed or paid by a distributor registered as such or (2) on\nwhich such taxes are required to have been passed through to him and\nhave not been included in his cost when such owner has known of the\nrequirement that such taxes be so included and where to his knowledge\nsuch taxes have not been so included. For purposes of this paragraph, it\nshall be presumptive evidence that such owner shall willfully and\nknowingly have in his custody, possession or under his control any motor\nfuel or Diesel motor fuel (1) on which such taxes have not been assumed\nor paid by a distributor registered as such or (2) on which such taxes\nare required to have been passed through to him and have not been\nincluded in his cost where such owner has not received the certification\nrequired by subdivision three of section two hundred eighty-five-a or,\nin the case of Diesel motor fuel, by subdivision four of section two\nhundred eighty-five-b of this article at the time of delivery of such\nmotor fuel or Diesel motor fuel, or, in those circumstances where the\ncommissioner has authorized the delivery of the certification at a time\nafter delivery of the motor fuel or Diesel motor fuel, at the time\nprescribed by the commissioner.\n (e-1) In addition to any other penalties that may be imposed by law,\nany of the following penalties may be imposed.\n (i) Any person who fails to file an informational return under this\narticle on or before the prescribed date, must pay a penalty of fifteen\nhundred dollars for the first violation and a penalty of three thousand\ndollars for each subsequent violation, unless it can be shown that such\nfailure is due to reasonable cause and not willful neglect.\n (ii) Any person who fails to file an informational return within sixty\ndays of the date prescribed for filing must pay a penalty of two\nthousand dollars for the first violation and a penalty of four thousand\ndollars for each subsequent violation, unless it can be shown that such\nfailure is due to reasonable cause and not willful neglect.\n (iii) Any person who fails to file a complete informational return\nmust pay a penalty of fifteen hundred dollars for the first violation\nand a penalty of three thousand dollars for each subsequent violation,\nunless it can be shown that such failure is due to reasonable cause and\nnot willful neglect.\n (iv) If any person makes a statement on an informational return and,\nas of the time of the statement, there was no reasonable basis for that\nstatement, that person must pay a penalty of two thousand dollars for\nthe first violation and a penalty of four thousand dollars for each\nsubsequent violation.\n (f) The penalties and interest provided for in this section shall be\ndetermined, assessed, collected and paid in the same manner as the taxes\nimposed by this article and shall be disposed of as hereinafter provided\nwith respect to moneys derived from the tax. Unpaid penalties and\ninterest under this subdivision may be recovered by the attorney-general\nby action in the name of the people, and all penalties and interest due\nfrom the same distributor may be sued for in one action. Interest under\nthis subdivision shall be compounded daily.\n 2. Any officer, director, shareholder or employee of a corporation or\nof a dissolved corporation, any employee of a partnership or any\nemployee of an individual proprietorship, who as such officer, director,\nshareholder or employee is under a duty to act for such corporation,\npartnership or proprietorship in complying with any requirement of this\narticle, and any member of a partnership, which fails to pay the taxes\nimposed by or pursuant to this article, shall, in addition to other\npenalties provided by law, be liable to a penalty equal to the total\namount of the tax not paid, plus penalties and interest computed\npursuant to subdivision one of this section as if such person were a\ndistributor. If the tax commission determines that such failure was due\nto reasonable cause and not due to willful neglect, it shall remit all\nor part of such penalty imposed under this subdivision. Such penalty\nshall be determined, assessed, collected and paid in the same manner as\nthe taxes imposed by this article and shall be disposed of as\nhereinafter provided with respect to moneys derived from the tax.\n 3. For purposes of this chapter, the failure to do any act required by\nor under the provisions of this article shall be deemed an act committed\nin part at the office of the department of taxation and finance in\nAlbany. For purposes of this chapter, the certificate of the tax\ncommission to the effect that a tax has not been paid, that a return has\nnot been filed, or that information has not been supplied, as required\nby or under the provisions of this article, or that a claim for refund\nhas been filed, shall be prima facie evidence that such tax has not been\npaid, that such return has not been filed, that such information has not\nbeen supplied, or that such claim has been filed.\n 4. Cross-reference: For criminal penalties, see article thirty-seven\nof this chapter.\n 5. (a) Any purchaser of Diesel motor fuel who knowingly issues a false\nor fraudulent exempt transaction certificate (or a similar document\nwhich has been prescribed by the commissioner of taxation and finance)\nor interdistributor sale certificate in order to claim an exemption from\nthe taxes imposed on Diesel motor fuel by this article by reason of an\nexemption from tax provided for in paragraph (b) of subdivision three of\nsection two hundred eighty-two-a of this article, shall, in addition to\nliability for tax or any other penalty imposed by this chapter, be\nsubject to a penalty of one hundred percent of the tax liability which\nwould have resulted if there had not been a misuse of such certificate.\n (b) Any seller of Diesel motor fuel who knowingly accepts from a\npurchaser a false or fraudulent exempt transaction certificate (or a\nsimilar document which has been prescribed by the commissioner of\ntaxation and finance) or interdistributor sale certificate which claims\nan exemption from the taxes imposed on Diesel motor fuel by this article\nby reason of the exemption from tax provided for in such paragraph (b)\nof subdivision three of section two hundred eighty-two-a of this article\nshall, in addition to liability for tax or any other penalty imposed by\nthis chapter, be subject to a penalty of one hundred percent of the tax\nliability which would have resulted if such certificate had not been so\naccepted.\n